1. The Second defendant in O.S. No. 1705 of 1973 in the court of the District Munsif of Vridhachalam is the appellant. One Arumugha Mudaliar had four daughters of whom one Sellammal died issueless. The position of the family with reference to the rest of the daughters will be clear form the following pedigree:-
Valliammal Kamalammal Amirthammal
Sudaravalliammal Parumal Pillai Kaliamma (D-1) (D-2)
Kasturi 1st wife'sNagaraj
(d. 10-06-1952) 2nd wife Kasthuri
( Durairaj P.1)
The first plaintiff is the son of Perumal Pillai the first defendant, and Kasthuri is the great grand daughter of Arumuga. the said Kasthuri having married her mother's cousin Perumal as his second wife. After the death of Kasthuri, whom he had married subsequent to his first wife's demise. he married a third wife by name Vijaya. Through the first marriage he has a son by name Nagaraj. Through the second marriage he has a son by name Durairajan. that is, the plaintiff. Through the third marriage. he had a son by name Ravi.
2. To go back to the family of Arumugha, he executed Ex, A. 4 under which he bequeathed his properties to his first daughter Valliammal and to his second daughter's son. Perunial, the first defendant. There was partition between Valliammal and the first defendant on 29th June, 1940, Valliammal, on the same day, executed a Will by which she bequeathed items 1 to 4 of Part I of A Schedule to the plaint to her grand daughter Kasthuri and items 1 and 2 of Part II of A Schedule to the plaint to the second plaintiff. The plaintiffs claimed that Kasthuri was entitled to the suit Properties, some by Purchase. and others by bequest. The second defendant. among others. was in possession of the various items of the suit properties and the Plaintiffs claimed that their possession was not legal and praved for declarations of title and possession. The defendants traced their title to certain court auction purchase in execution of decrees against the first defendant or direct Purchase from him, The -plaintiffs claimed that the properties were not the properties of the first defendant so as to be sold in court auction in execution of the decrees Passed against him. The court auction was conducted in pursuance of the decree in 0. S. 544 of 1966 and there was a claim petition M. P. 842 of 1966 (Ex. B 13) by Vijava. the third wife of Perumal and the stepmother of the first plaintiff. In the said claim petition, the step-mother of the first Plaintiff stated that the Properties were in the enjoyment of Valliaal and Kamalammal, the daughters of Arumugha, after his death and that they effected a partition between themselves on 29th June, 1940, that after the death of Valliammal the Properties were in the enjoyment of her daughter Sundaravalliammal and her grand daughter. KasthurL and that after their death. the first Plaintiff and his brothers became entitled to the properties. it is also stated that in certain other properties, which were sold in execution, the first plaintiff had an one-fourth share and the other two sons of Perumal Pillai had each one-fourth share, with the result that the sale in execution of decrees against Perumal. would not bind them or their interests in the properties. The claim petition was made on 3rd May, 1966. It was dismissed on 19tb Jan. 1967, At the time of the hearing of the claim petition the claims of Naji!araj. the first wife's son of Perumal, and Ravi the third wife's son of Perumal, were not pressed with the result that the court had only to deal with the one fourth share of the plaintiff as put forward in the claim petition. The stepmother. as guardian ad litem did not take any further action after the dismissal of the claim Petition. The Present suit was filed on 30-4-1973 for declaration, possession and mesne profits.
3. The suit was resisted among others by the second defendant on the ground that he was a bona fide purchaser for value in court auction and that the plaintiffs. not having taken steps within one year from the dismissal of the claim petition, could not validly seek the declaration asked for,
4. The learned District Munsif dismissed the suit with reference to some of the items, but decreed the suit in respect of the items which are now material to the second appeal.
5. The second defendant filed an appeal, and at the time of the arguments the contentions were confined to items 3 and 4 of Part I of A Schedule. The ground urged was that the suit was barred by omission to take steps to set aside the order of dismissal of the claim petition under Ex. B 13 within the Period of limitation.
6. The learned Subordinate Judge. of Chidambaram. after noticing the contentions, found that one of the points for determination was whether any Portion of the plaintiffs claim was barred by reason of the failure to set aside within the time prescribed the order under Ex. B 13. He held that Ex. B 13 was void in so far as the first plaintiff was concerned as he was represented by a guardian ad litem whose interest was adverse to that of the minor and who could not, consequently legally represent him at all, He. Therefore, took the view that there was no need for the first plaintiff to take steps to set aside the order either within one year from the date of the order or within one year after his attaining majority. The result was that the appeal was dismissed with reference to the suit items and, therefore, the second defendant is now in second appeal in this court.
7. At the time of the admission of the second appeal the following question of law was framed:-
"Whether in view of the failure on the part of the plaintiffs to institute a suit under O. 21, R. 63. C. P. C. within one year from the date of Ex. B 13, the present suit is maintainable, especially when the plaintiffs were minors represented by their step-mother in the application filed under O. 21, R, 58, C. P.C.11
Mr. K. Duraiswami the learned counsel for the appellant, submitted that there was no adverse Interest between the first plaintiff and his step-mother that the step-mother, Vijaya, was appointed as guardian ad litem. that the respondent was, thus, properly represented in the proceedings and that, therefore, there was no question of the order being a nullity on the ground of the respondent not being represented at all, His further contention was that unless the cumulative condition of (a) adverse interest between the guardian ad litem and the ward and (b) prejudice in fact to the ward consequent on such adverse Interest was there. there could be no infirmity with reference to the appointment of the guardian ad liter, or the proceedings in the court that followed. Certain decisions. to which I shall refer to presently, were brought to my notice,
8. Mr. P. S. Ramachandran the learned counsel for the respondents. submitted that the guardian ad litem had not referred to the Will left by Valliammal, that the whole of the claim petition was put forward on an imaginary around of the Property be in a joint family property and that even in the proceedings relating to the claim Petition, even though the interest of the other sons of Perumal Pillai was not pressed there was no amendment to the claim Petition. In order to bring out that the first plaintiff was entitled to the whole of the properties. It was further contended that the first Plaintiff was the owner of these properties and that there could be no sale in execution of properties belonging to him in respect of a decree passed against the first defendant his father.
9. The earliest decision to be noticed on the binding nature of the order on the claim petition is that of a Bench of this court in Kuppuswami Ayyangar v. Kamalammal, (1920) ILR 43 Mad 842: (AIR 1920 Mad 045), In that case, the mother acting as the guardian of her minor sons mortgaged their Property. A decree was obtained on the mortgage and in the suit she was appointed as the guardian ad litem. The property was sold in execution. The sons, after attaining majority, instituted a suit for recovery of possession of the properties on the around that the alienation was not for any necessity and that the suit, decree and execution sale were not binding on them. The suit was filed more than three years after the first plaintiff attained majority. The contention was that the decree and the sale were nullities, as the mother was not a proper guardian ad litem since by reason of the execution of the mortgage, she had an Interest adverse to those of minors. The learned Judges held that there was no adverse interest on the part of the mother, which rendered the decree against the minors a nullity. In the course of the judgment the learned Judges observed as follows: -
"Assuming, but not deciding that the mother had any sort of adverse interest, we are not prepared to hold that she was so wholly disqualified that her representation must be treated as no representation and the decree must be regarded as null and void and need not be set aside, on proof of fraud or other wise.19
This decision was noticed In Venkatachalam Chetty v. Paramasivam Pillai, AIR 1927 Mad 668 which arose out of a suit for declaration by a minor that a decree obtained against him was not binding on him on the ground that the guardian ad litem did not properly represent him. It was held that definite prejudice should have been alleged in the plaint and framed in the issues and that there must be proof that the guardian ad litem. could have adduced useful evidence or was aware that such evidence or was aware that such evidence was available. The decree was held to be binding.
10. In Maruti Swamiar v. A. Subramania Iyyar, AIR 1929 Mad 393 the father was an executant of a mortgage and in a suit filed for enforcement of the mortgage, a minor son was impleaded. The father was appointed guardian ad litem. It was held that the appointment of the father as guardian ad litem was not void merely because he was the executant of the suit mortgage and that if the minor, after attaining majority contested such appointment. He had to prove that the interests of the guardian so appointed were adverse and that the guardian did not Properly defend the suit with the result that the minor was prejudiced.
11. Reference was also made in the arguments to the decision in Sellappa Goundan v. Masa Naicken, (1924) ILR 47 Mad 79 - (AIR 1924 Mad 297). A mortgage bond was executed by the father, A suit was filed on the mortgage for sale of the mortgaged property. The minor sons were impleaded and the father was appointed by the court as guardian ad litem. A decree was passed for the entire mortgaged property which was sold in execution and purchased by the decree-holder, Subsequently there was a suit by the minor sons, through their next friend, for a declaration that the decree and sale in the previous suit were invalid against them. A Bench of this court held that the interest of the father was adverse to that of the minor sons and that the appointment of the father as guardian was improper and illegal. The decree and the sale were consequently held to be invalid in so far as the shares of the minor sons were concerned. The decisions considered above Jay down that a person could be appointed even if there was scope for adverse interest vis a vis the son or ward, The existence of adverse interest without more, does not per se involve the consequence that there was no proper representation of the minor so that a decree or order obtained against him became a nullity. The further question is what would be the Position if there was negligence on the Part of the guardian.
12. The earliest case on this aspect is that of Sankaran Nair and Spencer JJ. in Gotepatti Subbanna v. Gotepatti Narasamma, (1914) 27 Mad LJ 486: (AIR 1915 Mad 384), where. it was held that a minor was not bound by a decree passed against him in a suit where the guardian showed gross negligence by not setting up a good defence. This decision was followed in Chunduru Punnayyah v. Raiam, Viranna, (1922) ILR 45 Mad 425: (AIR 1922 Mad 273). That was a case of a suit against a minor on a mortgage executed by a guardian for lending money to a stranger for carrying on business that was not ancestral on behalf of a minor. The head clerk of the Court was appointed guardian of the minor, The guardian suffered a decree to be passed and did not take the defence that the alienation was not for the benefit of the minor. It was held that there was gross negligence and that the decree was not binding.
13. Kumaraswami Sastri J. and Devadoss J. had to deal with a similar question. They referred to a Full Bench the following three questions in Madduri Venkatasomeswara Rao v. Pulavarty Lakshmanasami, (1929) JLR 52 Mad 275: (AIR 1929 Mad 213):-
1. Whether the appointment of a person, who executes a document or enters into a transaction as the guardian ad litem, of a minor, is valid in a suit on the document or transaction?
2. Whether the appointment of a person, whose interests are adverse to those of the minor as his guardian ad litem, renders the decree void against the minor or only voidable by him? and
3. Whether objection could be taken in execution that the decree is void?
14. The order of reference separately by Kumaraswami Sastri J. and Devadoss J. is fairly a long one and discusses several earlier authorities in which the problem had arisen, and where there was an apparent conflict. Taking up the first question, the Full Bench held that the matter cannot be treated as a pure question of law, that the appointment of a guardian ad litem was in exercise of judicial discretion and that it could not be said that the court had no discretion in any conceivable case to appoint such a person as the guardian ad litem in a suit filed against him and his minor son. The learned Judges pointed out also that in a vast majority of cases to appoint such person would be wholly undesirable, However, as far as that case was concerned, they considered the matter to be one of fact.
15. On the second question, the opinion expressed was that it would be premature to decide that point also as an abstract question of law, without a finding or a decision of fact directed to the express point that the interests of the guardian ad litem were adverse to those of the minor, On the facts of that case, it was mentioned that all they had was an appointment of a guardian ad litem and that it would only go to show that the guardian's interests were not adverse to those of minors.
16. The third question was also dependent on the determination of the other two questions so that it too could not be treated as a question of law. It follows from this decision that, the matter has to be examined in the light of the facts in each case to find out whether there was an adverse interest and there was prejudice. If there was an adverse interest as well as prejudice, then the decree or order would not be binding on the minor.
17. The matter has been considered in some later decisions of this Court and of the Andhra Pradesh High Court. It is enough for my purpose to refer to some decisions of this court and of the Andhra Pradesh High Court.
18. In Marudamuthu Khandar v. Arunachalam Chettiar, , one Palaniappa had a son by name Kandaswami, who was given to vices. Palaniappa obtained a release from Kandasami on condition of his being paid Rs. 500 per year for his maintenance. There was, as part of the arrangement, an agreement between Palaniappa and Kandasami that on the death of Palaniappa, the properties were to devolve on the heirs of Kandaswami Kandaswami however, in violation of this agreement, took over the management of the properties and executed sale deeds, practically for no consideration. The plaintiff in that case was a minor and his father's sister's husband filed a suit as his next friend, against his father, Kandaswami, contending that the sale deeds were bogus. He prayed also for partition of the plaintiff's half share. Enraged by the filing of the suit the alienee who was also a relation, murdered the next friend and the suit was thereafter conducted by another sister's husband of the plaintiff's father, They engaged the services of a competent counsel. Ultimately, a half share was allotted to the plaintiff, but subject to certain debts. The quondam minor then filed a suit contending that the earlier proceedings were vitiated by gross negligence by his next friend and guardian. The trial Court dismissed the suit and the matter was brought on appeal to this court. It was heard by Rajamannar C. J. and Panchapakesa Ayyar J. Panchapakesa Ayyer J. delivering the judgment of the Bench, setting aside the decree observed at page 590 (of ILR Mad) 1, (at P. 399 of AIR) as follows -
"Though the matter is not decided in any case cited before us by either side, we are of opinion that gross negligence on the part of the guardian and his lawyer in execution proceedings as well as in not filing an appeal, where one was certainly asked for, against decisions in suits conducted by him (but not in suits decided before he became guardian), will entitle the minor to rely on the principle (of safe guading the interest of the minor against the negligence of the guardian), though the principle in question is not one of natural justice or of an international private law, but one peculiar to India, where minors have been the favorites of the law from time immemorial and have been given special privileges denied to others and the protection of the minor has been the special duty of the King or State, It is obvious that in the absence of fraud or collusion, it may be considered to be not part of natural justice that the other side should be made to suffer by depriving it of the benefits of its decree, simply because the minor's guardian and lawyer, over whom he had no control, had been guilty of gross negligence in conducting the suit, appeal or execution proceedings, But still the principle has been applied to suits and we cannot see any valid reason why it should not be extended in suitable cases to execution proceedings and to appeal which ought to have been filed by the guardian in suits conducted by, him."
19. The guardian is not, however, bound to raise a false and untenable ground or persist in it after having raised it.
20. The same learned Judges dealt with another case in Ganesan Pillai v, Subramanyan, AIR 1958 Mad 148.in that case there was a decree in A.S.178of 1944 on the file of this court and the which give raise to the appeal was filed for setting aside that decree on the ground that there was gross negligence on the part of his mother, who had acted as the next friend. The trial court dismissed the suit and this court allowedt he appeal. It was held that there was no res judicata as it would be idle to refute the claim of the erstwhile minor by pleading that very decree as res judicata. At page 150 Rajamannar C. J, delivering the judgment pointed out as follows-
"It is too late in the day to contend that a minor is not entitled to file a suit to set aside the decree in a prior suit to which he was a party represented by his guardian or next friend on the ground of gross negligence of his guardian or next friend That right has been again and again recognised by this court. That right cannot certainly be taken away by the application of the rule of res Judicata."
A Division Bench of the Andhra Pradesh High Court consisting of Viswanatha Sastri and Krishna Rao JJ in question. It was held that gross negligence on the part of a next friend or guardian ad litem the minor in conducting or defending a suit to which he was a party, entitled the minor to challenge the decree passed against him and avoid its effects, Several decisions of this and other courts have been referred to therein. At page 695 with reference to this aspect it was further pointed out as follows-
"The negligence must have been such as to result in the loss of a right which would have been successfully asserted if the suit had been conducted Or resisted with ordinary care and prudence. It might consist in the omission to raise an available plea or to adduce available evidence to substantiate it. If the next friend or guardian ad litem had been guilty of gross dereliction of duty, that is to say, if he had neglected to do what was plainly his duty or did or omitted to do something which no man of common honesty and ordinary prudence would have done or omitted, then the minor would have a right to set aside an adverse decision attributable to the guardian's breach of duty. The negligence of the guardian must be so serious or of such a character as to justify the inference that the minor's interests were not at all protected and in substance, though in form the minor went unrepresented at the trial."
21. In cases of gross dereliction of duty or gross negligence on the part of the guardian to put forward proper defence, the decree is vitiated, and can be avoided.
22. There is one other aspect, which requires to be noticed at this stage, and that is whether the proceedings culminating in the dismissal of the claim petition, could be treated to be a nullity. If the minor was not properly represented in the claim proceedings, then the whole proceedings would be a nullity. After all a minor, who is not properly represented in court proceedings, cannot be bound by the orders passed therein.
23. In Nagappa v. Rajabhai Hussain (1920) ILR 43 Mad 808: (AIR 1920 Mad 745), it has been held that if a minor has a guardian appointed for him by a competent authority, he alone can represent the minor in any litigation and hence a decree obtained against such a minor represented not by such a guardian, but by another, though the court, in so appointing another, acted in ignorance of the existence of such appointed guardian, is, not binding on the minor. This proposition was laid down in a suit to set aside a decree passed against a minor on a mortgage bond executed by the minor's mother. In that case an officer of the court was appointed as guardian. There was also a guardian, who had been appointed by the District Court for the minor. It was in those circumstances held that notwithstanding that the decree was passed against the minor with a guardian ad litem appointed by the court. the proceeding did not bind the minor,
24. As pointed out in Sellappa Gounden v. Masa Naicken. (1924) ILR 47 Mad 79: (AIR 1924 Mad 297), a minor represented in a suit by a guardian ad litem whose interest is adverse to that of the minor, is not a legal representation at all. In that case, the suit was on a mortgage bond executed by the father, and the father was appointed as the guardian, A decree was passed against the entire mortgaged property, which was sold in execution and purchased by the decree holder. On a suit instituted by the minor sons by their next friend against their father and the auction purchaser for a declaration that the decree and sale in the previous suit were invalid against them and their shares in the family property, it was held that the interest of the father was adverse to that of the minor sons and that the appointment of the father as guardian was im7proper and illegal. The decree and sale were, therefore, held to be invalid in so far as the shares of the minors were concerned.
25. Is the decree passed or an order obtained void or voidable? This problem was considered by Raghava Rao J. in Karuppa Goundan v. Komarasami Gounder, . That was a case where at the
instance of the mother as next friend, a suit was filed in which the validity and binding character of a settlement in favour of a minor was gone into. The suit was decreed in favour of the minor, but on appeal, the mother failed to appear and the suit was dismissed. The erstwhile minor after attaining majority brought a fresh suit seeking the same relief. The second suit was dismissed. When the matter reached this court on second appeal, it was held that a decree against a minor, vitiated by gross negligence of the guardian, was only voidable and not void and that unless it was set aside, it was binding on the minor, How far this decision can stand aside, Ganesan Pillai v. Subramanyan, AIR 1958 Mad 148, which is a decision by a Bench, will have to be gone into on an appropriate occasion. It is this judgment of Raghava Rao J. which was referred to with apparent approval by a Full Bench of the Allahabad High Court in Rameshwar Prasad v. Ramchandra Sharma, . The facts do not appear from the judgment of the Full Bench. But that appears to be a case of a mere negligence as opposed to the adverse interest, and gross negligence on the part of the guardian here, It does not appear to be necessary to go into the Full Bench decision of the Allahabad High Court any further here,
26. From the above discussion. the following principles emerge:-
1. The appointment of the guardian ad litem is in exercise of judicial discretion and it cannot be stated that the court had no discretion in any conceivable case to appoint such a person, who may have some adverse interest as against the minor, as the guardian ad litem. But the facts may show that the appointment of such person would be wholly undesirable and that he did not properly represent the minor at all. In such a case the representation by the guardian ad litem would be no representation at all.
2. When there is a court guardian appointed, then the appointment of the guardian ad litem would be bad; and
3. If the guardian ad litem properly appointed has been negligent in conducting or defending proceedings on behalf of a minor, then the minor through his next friend or on attaining majority can file a suit to set aside the decree obtained against him. if the appointment of a person with adverse interest is found to be adverse to the interest of the minor and if the guardian is further grossly negligent in conducting the litigation, then the order would be a nullity and wholly void.
It is in the light of these principles that we have to consider the appointment of the guardian in the present case and her conduct in the claim proceedings. The plaintiff, after his mother's death, was not living with his father and his stepmother Vijaya, but only with Amirthammal, who is his great-grandmother's sister. She had been appointed as a guardian of the minor as shown by Ext. B-1. There is no explanation as to why Vijaya, the step-mother began to take notice of the step son, who was not living with her, got herself appointed as guardian ad litem and made a half hearted attempt to file a claim petition on his behalf putting forward the facts, which were wholly prejudicial to the minor. In facts, as pointed out by the trial court in paragraph 18 of its judgment, the claim petition was filed in the year 1966 and in a suit filed by the sixth defendant against the first defendant and others, she had described Amirthammal as the guardian of the minor. On the facts herein, Vijaya should have put forward the Will executed by Valliammal and shown that the properties derived from Valliammal could not have been sold in execution of the decree against her husband, the first defendant, Instead of doing this she put forward the position that the properties were joint family properties and that the minor was entitled only to 1/4th share therein. Such a case was wholly prejudicial to the minor. Though she had put forward that the minor and his two step brothers were also each entitled to one-fourth share, at the hearing of the claim petition, she abandoned the claim of the step-brothers of the first plaintiff and restricted the objection only to one fourth of the first plaintiff. This conduct is explainable only on the basis that she knew that the properties were not joint family properties. It has already been seen that under Ex, A-6 dated 29th June 1940, executed by Valliammal. one-half of the properties was bequeathed to Kasthuri and the other half to the second plaintiff, The first defendant was nowhere in the picture. The properties traceable to Valliammal could not have belonged to the first defendant at all. Any guardian ad litem acting reasonably and a person of ordinary prudence would have Put forward the first plaintiff's title to the entire property. There is also no explanation as to why she did not pursue the matter further. These circumstances would go to show that she was acting against the interest of the minor only in collusion with her husband, the first defendant. Though there was an apparent attempt at filing of a claim petition, ultimately the proceedings were allowed to end as against the minor by reason of gross negligence. On the facts herein, the court below rightly applied the principle of the decision inSellappa Goundan v. Masa Naicken, (1924) ILR 47 Mad 79 ; (AIR 1924 Mad 297).
27. The learned counsel for the appellant contended that the only manner in which the order in the claim petition could be got rid of is by taking proceedings under O. 21. R. 63 C.P.C. and that so long as the plaintiffs have failed to do so, they could not independently put forward the claim. This ignores the aspect discussed above, viz., that the minor was not properly represented at all in these proceedings and, therefore, the claim petition did not bind him, This Is not a case where the guardian could be taken to have acted perfectly in good faith as in Subbiah Pandaram v. Arunachala Pandaram, AIR 1925 Mad 379, where it was held that such a suit should be filed within the period of one year from the date of the order. In that case the guardian had brought a suit within the period of one year, but unfortunately did not succeed, A later suit on the same cause of action was found to be not maintainable. But that was not a case of even ordinary negligence, let alone gross negligence,
28. Having considered all the aspects, I am satisfied that the courts below have rightly held that the first plaintiff was entitled to a decree to the extent relevant in the present appeal, The second appeal is accordingly dismissed, but in the circumstances with no order as to costs,
29. Appeal dismissed